Common Law Marriage in Pennsylvania: Understanding New Laws

Schwartz, Fox & Saltzman, LLC. – Philadelphia Divorce Lawyers

Beginning January 2005, claims of common law marriage for all relationships which began after that date, became illegal and unenforceable. Relationships prior to that date were “grandfathered in” and remained a claim that could be made. With that being said, even before 2005, the ability to succeed with a claim for common law marriage was difficult. There were considerable proof problems. Claimants made the claim of common law marriage in two circumstances:

The death of one of the parties: In this case, one party passed away and generally had a pension, other retirement benefits or the parties owned property together. The survivor would make a claim in court to have their relationship declared to be a marriage. In that way, the party wishing to have the relationship declared a marriage could share in the property of the other party. However common law marriage was difficult to prove in many cases.

Parties separated and one of the parties made a claim that the parties were common law married: In this case, if a party could prove that they were common law married, that party would then divide property accumulated during the marriage, as any married couple would. Otherwise, the unmarried couple would separate and each take their property. The problem with this solution was how to divide jointly held property. Without a declaration of marriage, the parties could not come to Family Court to do this division of property, and were left to file a lawsuit against each other to have the civil court divide the property. This was seen as a more expensive, and more lengthily process. So, how did a party prove common law marriage in this

If both parties were still alive at the time of the common law marriage trial, they needed to verbally declare, in front of two witnesses who were still alive and willing to testify at the time of the common law marriage trial, that the witnesses were present when the two parties stated that they considered themselves to be married and as husband and wife.

Absent this declaration, there was no common law marriage. There are many misconceptions about how to prove a common law marriage. The most common one is that if the parties reside together for seven years or more, they are or can be considered common law married. That is simply not true. There is no “magical” period of time the parties need to be together and the amount of time they are together is immaterial.

The second most commonly held belief is that common law marriage can be proven by reputation, meaning that if people held themselves out as being married, filed joint tax returns or used the same last name, this was proof of common law marriage. That is not true if the parties are both alive. Reputation can only be used if one party is deceased. As stated above, if the parties are both still alive, the marriage declaration referred to above was the only way to establish common law marriage.

Unfortunately, reputation type proof, if one party is deceased, is subject to rampant fraud in the eyes of the court. First, one party is deceased and therefore not present to testify. The party who is alive is looking to share in the bounty of the deceased partner. By doing so, that party is taking assets from the family of the deceased party. Needless to say, the surviving spouse is looked at quite skeptically by the court.

Because of the possibility of fraud and the substantial proof issues, the legislature of Pennsylvania decided to make common law marriage illegal after 2005.

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